Barton v. Shinn ( 2019 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Donald Gene Barton, ) No. CV 16-772-TUC-JAS (EJM) ) 9 Petitioner, ) ORDER ) 10 vs. ) ) 11 ) Charles Ryan, et al. ) 12 ) Respondents. ) 13 ) ) 14 15 Pending before the Court is a Report and Recommendation issued by United States 16 Magistrate Judge Markovich that recommends denying Petitioner’s habeas petition filed 17 pursuant to 28 U.S.C. §2254. A review of the record reflects that the parties have not filed 18 any objections to the Report and Recommendation and the time to file objections has expired. 19 As such, the Court will not consider any objections or new evidence. 20 The Court has reviewed the record and concludes that Magistrate Judge Markovich’s 21 recommendations are not clearly erroneous and they are adopted. See 28 U.S.C. § 636(b)(1); 22 Fed. R. Civ. P. 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); 23 Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998). 24 Before Petitioner can appeal this Court's judgment, a certificate of appealability must 25 issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). The district court that rendered 26 a judgment denying the petition made pursuant to 28 U.S.C. §2254 must either issue a 27 certificate of appealability or state why a certificate should not issue. See id. Additionally, 28 28 U.S.C. §2253(c)(2) provides that a certificate may issue "only if the applicant has made 1 || asubstantial showing of the denial of a constitutional right." In the certificate, the court must 2 || indicate which specific issues satisfy this showing. See 28 U.S.C. §2253(c)(3). A substantial 3 | showing is made when the resolution of an issue of appeal is debatable among reasonable 4 || jurists, if courts could resolve the issues differently, or if the issue deserves further 5 || proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Upon review of the 6 || record in light of the standards for granting a certificate of appealability, the Court concludes 7 || that a certificate shall not issue as the resolution of the petition is not debatable among 8 || reasonable jurists and does not deserve further proceedings. 9 Accordingly, IT IS HEREBY ORDERED as follows: 10 |] (1) The Report and Recommendation (Doc. 10) is accepted and adopted. 11 }| (2) Petitioner’s §2254 habeas petition is denied and this case is dismissed with prejudice. 12 || (3) A Certificate of Appealability is denied and shall not issue. 13 }| (4) The Clerk of the Court shall enter judgment and close the file in this case. 14 15 16 || Dated this 4th day of December, 2019. 17 | □ m 18 Honorable James A. Soto 19 United States District Judge 20 21 22 23 24 25 26 27 28 _2-